[Cite as Quality Car & Truck Leasing, Inc. v. Pertuset, 2014-Ohio-1291.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

QUALITY CAR & TRUCK : 

LEASING, INC., : 

 : 

Plaintiff-Appellee, : Case No. 13CA3565 

 : 

vs. : 

: DECISION AND JUDGMENT

CARL E. PERTUSET, et al., : ENTRY

 : 

Defendants-Appellants. : Released: 03/27/14 

_____________________________________________________________ 

APPEARANCES:

Bruce M. Broyles, The Law Office of Bruce M. Broyles, Boardman, Ohio, 

for Appellants. 

Chadwick K. Sayre, Portsmouth, Ohio, for Appellee. 

_____________________________________________________________ 

McFarland, J. 

{¶1} This is an appeal from a Scioto County Common Pleas Court 

judgment denying Carl and Vera Pertuset’s, Appellants herein, motion to 

vacate a prior grant of judgment on the pleadings in favor of Quality Car & 

Truck Leasing, Inc., Appellee herein. On appeal, Appellants contend that 

the trial court erred in their motion to vacate the July 11, 2011, judgment on 

the pleadings, which we note has already been affirmed on appeal, without 

remand, by this Court in Quality Car & Truck Leasing, Inc. v. Carl E. 

Pertuset, et al., Scioto No. 11CA3436, 2013-Ohio-1964 (Pertuset I) on May 
Scioto App. No. 13CA3565 2

3, 2013. Because this Court has already affirmed the trial court’s grant of 

judgment on the pleadings in favor of Appellees, and because Appellants’ 

current argument could and should have been raised as part of the direct 

appeal, Appellants’ argument is barred by the doctrines of res judicata and 

law of the case. 

FACTS 

{¶2} This matter is now before us on appeal for a third time.1

 As 

such, we set forth the facts, as already stated in Pertuset I. 

“Appellee commenced the instant action and alleged that 

appellants were in default of seven installment sales contracts 

used to purchase equipment. As a result of that default, 

appellees continued, it was entitled to recover the equipment 

pledged as security for those contracts. Appellants filed a 

‘notice of appearance’ to which they attached copies of the 

summons and complaint with a stamp that stated ‘refused for 

cause consent not given permission denied.’ 

Appellee subsequently filed a Civ.R. 12(C) motion for 

judgment on the pleadings. Appellants did not respond to that 

 

1

 While Pertuset I was pending on appeal, Appellants filed a series of motions in the trial court claiming 

Appellees lacking standing and that the trial court lacked subject matter jurisdiction over the case. The trial 

court denied Appellants’ motions and Appellants filed another appeal (Pertuset II). We, however, 

administratively dismissed Pertuset II, citing the trial court’s lack of jurisdiction to rule on the motions 

while Pertuset I was still pending in this Court. Quality Car and Truck Leasing v. McDermott Industries. 

LLC, et al., 4th Dist. Scioto No. 12CA3518 (Jan. 10, 2013). 
Scioto App. No. 13CA3565 3

motion, but, instead, filed a motion to dismiss and argued, inter 

alia, the failure to state a claim upon which relief could be 

granted, lack of jurisdiction and ‘fraud.’ After due 

consideration, the trial court granted appellees' motion for 

judgment on the pleadings.” Quality Car & Truck Leasing, Inc. 

v. Carl E. Pertuset, et al., supra, at ¶ 2-3. 

{¶3} Appellants filed an initial, direct appeal of the trial court’s 

decision. In the first appeal, we construed Appellant’s pro se brief to argue 

that the trial court erred by granting Appellee’s motion for judgment on the 

pleadings. Id. at ¶ 4. We employed a de novo review and determined that 

the trial court correctly granted Appellees’ motion for judgment on the 

pleadings, issuing our decision on May 3, 2013. Thus, we affirmed the 

decision of the trial court, without remand. 

{¶4} Just three days after this Court’s decision was issued, on May 6, 

2013, Appellants filed a motion to vacate the judgment on the pleadings 

granted July 11, 2011. In their motion, Appellants claimed they were 

deprived of their right to due process when the trial court denied their 

motion to dismiss and granted Appellees’ motion for judgment on the 

pleadings the same day, without allowing Appellants fourteen days to file an 

answer. Appellees opposed the motion and the trial court issued a judgment 
Scioto App. No. 13CA3565 4

entry on June 19, 2013, denying the motion. It is from this entry that 

Appellants bring their current appeal, setting forth one assignment of error 

for our review. 

ASSIGNMENT OF ERROR 

“I. THE TRIAL COURT ERRED IN DENYING APPELLANTS’ 

MOTION TO VACATE THE JULY 11, 2011 JUDGMENT ON THE 

PLEADINGS.” 

LEGAL ANALYSIS 

{¶5} In their sole assignment of error, Appellants contend that the trial 

court erred in denying their motion to vacate. Although Appellants’ motion 

is not titled as such, we construe it as a Civ.R. 60(B) motion for relief from 

judgment and address it under that framework. “ ‘In an appeal from a Civ.R. 

60(B) determination, a reviewing court must determine whether the trial 

court abused its discretion.’ ” Harris v. Anderson, 109 Ohio St.3d 101, 

2006-Ohio-1934, 846 N.E.2d 43, ¶ 7; quoting State ex rel. Russo v. Deters, 

80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997). An abuse of discretion 

occurs when a decision is unreasonable, arbitrary, or unconscionable. State 

ex rel. Tindira v. Ohio Police & Fire Pension, 130 Ohio St.3d 62, 2011-

Ohio-4677, 955 N.E.2d 963, ¶ 28. 

{¶6} “In order to prevail on a Civ.R. 60(B) motion for relief from 

judgment, the movant must establish that ‘(1) the party has a meritorious 
Scioto App. No. 13CA3565 5

defense or claim to present if relief is granted; (2) the party is entitled to 

relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) 

the motion is made within a reasonable time, and, where the grounds of 

relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the 

judgment, order or proceeding was entered or taken.’ ” Deters at 153-154; 

quoting GTE Automatic Elec., Inc., v. ARC Industries, Inc., 47 Ohio St.2d 

146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. “[R]elief is 

inappropriate if any one of the three requirements is not satisfied.” Deters at 

154; citing State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 666 

N.E.2d 1134 (1996). 

{¶7} “[T]o prevail on a motion for relief from judgment, the moving 

party must establish that it has a meritorious defense or claim to present if 

relief is granted. This requires the moving party to allege operative facts 

‘with enough specificity to allow the trial court to decide whether he or she 

has met that test.’ ” Byers v. Dearth, 4th Dist. No. 09CA3117, 2010-Ohio1988, ¶ 12; quoting Syphard v. Vrable, 141 Ohio App.3d 460, 463, 751 

N.E.2d 564 (2001). “Ultimately, ‘a proffered defense is meritorious if it is 

not a sham and when, if true, it states a defense in part, or in whole, to the 

claims for relief set forth in the complaint.’ ” Spaulding-Buescher v. Skaggs 

Masonry, Inc., 4th Dist. No. 08CA1, 2008-Ohio-6272, ¶ 10; quoting Amzee 
Scioto App. No. 13CA3565 6

Corp. v. Comerica Bank-Midwest, 10th Dist. No. 01AP-465, 2002-Ohio3084, ¶ 20. 

{¶8} Here, Appellants did not argue their motion to vacate in terms of 

Civ.R. 60(B). Thus, they made no effort either below or on appeal to 

demonstrate entitlement to relief under the rule. Rather, they argue that the 

trial court erred in granting Appellee’s motion for judgment on the pleadings 

the same day it denied Appellants’ motion to dismiss, without affording 

Appellants fourteen days to answer, which they claim they were entitled to 

under Civ.R. 12(A)(2). Appellants further claim that the trial court’s actions 

deprived them of due process and prevented them from filing an answer. 

What Appellants did not argue either below or on appeal, is what 

meritorious defense they would have asserted if they had been permitted to 

file an answer. Therefore, the defendants have not satisfied the meritorious 

defense component of Civ.R. 60(B). Accordingly, the trial court did not 

abuse its discretion by denying their motion to vacate the judgment. 

{¶9} The trial court provided no reasoning in support of its decision 

denying Appellants’ motion below. We find, however, in addition to failing 

to demonstrate the requirements for relief under Civ.R. 60(B), the trial court 

was justified in reaching its decision on an additional basis, specifically, the 

doctrines of law of the case and res judicata. 
Scioto App. No. 13CA3565 7

{¶10} The underlying basis of Appellants’ motion to vacate is 

Appellants’ argument that the trial court erred in granting judgment on the 

pleadings in favor of Appellee. Appellants essentially claim that judgment 

on the pleadings was premature, arguing they should have been entitled to an 

additional fourteen days to file an answer after the trial court denied their 

motion to dismiss, and that the trial court erred in immediately granting 

Appellee’s motion upon denying Appellants’ motion to dismiss. 

{¶11} This argument could have and should have been raised as part 

of Appellant’s first, direct appeal of this matter. The procedural facts of this 

case and the manner in which the trial court issued its decision were 

apparent at the time of the first appeal. Any argument related to Appellants 

not being given time to answer were capable of being raised at that time. 

Furthermore, this Court was squarely presented the question of whether the 

trial court erred in granting judgment on the pleadings in the first appeal. 

After employing a de novo review, and without giving any deference to the 

decision of the trial court, we affirmed the decision of the trial court, without 

remand. Quality Car & Truck Leasing, Inc. v. Carl E. Pertuset, et al., supra, 

at ¶ 9 (Pertuset I). 

{¶12} In Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984), 

the Supreme Court of Ohio discussed the doctrine of the law of the case 
Scioto App. No. 13CA3565 8

 “* * * the 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.” (internal citations 

omitted). 

The Nolan court further noted that while the rule will not be applied to 

achieve unjust results, the application of the rule is necessary “to ensure 

consistency of results in a case” as well as “to avoid endless litigation by 

settling the issues, and to preserve the structure of superior and inferior 

courts as designed by the Ohio Constitution.” Id.; citing Gohman v. St. 

Bernard, 111 Ohio St. 726, 730-731, 146 N.E. 291 (1924) (reversed on other 

grounds) and State, ex rel. Potain v. Mathews, 59 Ohio St.2d 29, 32, 391 

N.E.2d 343 (1979). 

{¶13} We find the reasoning set forth in Nolan with respect to the 

doctrine of the law of the case to be applicable to the matter presently before 

us. Absent a remand from this Court after a decision on the merits, the trial 

court lacked jurisdiction to vacate its own orders. In reaching this result, we 

rely on the reasoning set forth not only in Nolan v. Nolan, supra, but also our 

prior reasoning in State of Ohio, ex rel. Jim Petro v. Marshall, 4th Dist. 

Scioto No. 05CA3004, 2006-Ohio-5357. In that case, the trial court granted 
Scioto App. No. 13CA3565 9

a Civ.R. 60(B) motion to vacate a judgment filed by Adrian Rawlins and 

then granted Rawlins judicial release from prison, despite the fact that this 

Court had previously affirmed Rawlins’ conviction and sentence on appeal, 

without a remand. Id. at ¶ 4. As a result of the trial court’s actions, the 

Attorney General filed a complaint for a writ of prohibition, alleging that the 

trial court lacked jurisdiction to vacate Rawlins’ conviction. Id. at ¶ 1. This 

Court granted the writ, reasoning that “Judge Marshall patently and 

unambiguously lacked jurisdiction to entertain the motion after this court 

had expressly ruled on the same issues the motion presented.” Id. In 

reaching our decision, we reasoned as follows: 

“Civ.R. 60(B) clearly gives the trial court jurisdiction to grant 

relief from a final judgment. However, once a party undertakes 

an appeal and absent a remand, the trial court is divested of 

jurisdiction to take any action that is inconsistent with the 

appellate court's exercise of jurisdiction. Post v. Post (1990), 66 

Ohio App.3d 765, 769, 586 N.E.2d 185; State ex rel. Special 

Prosecutors, supra, at 97, 378 N.E.2d 162.” Id. at ¶ 27. 

{¶14} As we discussed in State, ex rel. Petro v. Marshall, the Special 

Prosecutors case involved a trial court’s subsequent grant of a motion to 

withdraw a guilty plea when the defendant “lost the appeal of a conviction 
Scioto App. No. 13CA3565 10

based upon the guilty plea.” Id. at ¶ 28. We noted that in Special 

Prosecutors, the Supreme Court reasoned that 

“allowing the trial court to consider a Crim.R. 32.1 motion to 

withdraw a guilty plea subsequent to an appeal and affirmance 

by the appellate court ‘would affect the decision of the 

reviewing court, which is not within the power of the trial court 

to do.’ ” Id. at ¶ 29; citing Special Prosecutors at 97-98. 

{¶15} Although both State, ex rel. Petro v. Marshall and Special 

Prosecutors both involved underlying criminal matters, we noted in State, ex 

rel. Petro v. Marshall at ¶ 30 that the Supreme Court of Ohio has made a 

similar rule concerning Civ.R. 60(B) motions. Specifically, we noted as 

follows: 

“* * * absent a remand from the appellate court, ‘an appeal 

divests trial courts of jurisdiction to consider Civ.R. 60(B) 

motions for relief from judgment.’ See Howard v. Catholic 

Social Servs. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 147, 

637 N.E.2d 890, 1994-Ohio-219, 637 N.E.3d 890, citing State, 

ex rel. East Mfg. Corp. v. Ohio Civ. Rights Comm. (1992), 63 

Ohio St.3d 179, 181, 586 N.E.2d 105. See, also, Post, supra, at 

770, 586 N.E.2d 185. Once a case has been appealed, ‘the trial 
Scioto App. No. 13CA3565 11

court is divested of jurisdiction except “over issues not 

inconsistent with that of the appellate court to review, affirm, 

modify or reverse the appealed judgment, such as the collateral 

issue like contempt * * *.” ’ State ex rel. State Fire Marshall v. 

Curl, 87 Ohio St.3d 568, 570, 2000-Ohio-248, [722] N.E.2d 73, 

quoting Special Prosecutors at 97, 378 N.E.2d 162. Where an 

appellate court has already ruled on an issue in a direct appeal, 

a trial court's ‘reconsideration’ of that same issue is inconsistent 

with the appellate court's exercise of jurisdiction and the 

doctrine of the law of the case. See, Hopkins v. Dyer, 104 Ohio 

St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329, at ¶ 15.” Id. 

{¶16} Further, as noted in State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, ¶35, “[t]he law-of-the-case doctrine is rooted in 

principles of res judicata and issue preclusion * * *.” The Fischer court 

noted that prior decisions have held that the law of the case doctrine “ ‘ 

precludes a litigant from attempting to rely on arguments at a retrial which 

were fully pursued, or available to be pursued, in a first appeal.’ ” Id. at ¶ 

34; quoting Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404-405, 

659 N.E.2d 781 (1996). Thus, because any issue related to Appellants not 

being afforded time to file an answer should have been apparent to the 
Scioto App. No. 13CA3565 12

parties and therefore was available to be pursued by the parties in the 

original, direct appeal, but was not, any argument based thereon was barred 

at any additional proceedings at the trial court level. 

{¶17} Recently, several Ohio courts have been confronted with 

questions in the area of foreclosure law with respect to when a trial court 

may vacate a prior judgment that was either not appealed, or was appealed 

and resulted in an affirmance by the reviewing court. See, Federal Home 

Loan Mortgage Corporation v. Schwartzwald, et al, 134 Ohio St.3d 13, 

2012-Ohio-5017, 979 N.E.2d 1214; Waterfall Victoria Master Fund Limited 

v. Yeager, et al., 11th Dist. Lake No. 2012-L-071, 2013-Ohio-3206; 

Chemical Bank, N.A. v. Krawczyk, et al., 8th Dist. Cuyahoga No. 98263, 

2013-Ohio-3614. Appellants’ brief references at least one of these cases, 

though not at length. However, we find these cases distinguishable both 

legally and factually from the situation presently before this Court. As such 

they are inapplicable. 

{¶18} Based upon the foregoing, we cannot conclude that the trial 

court erred or abused its discretion in denying Appellants’ motion to vacate 

the July 11, 2011, grant of judgment on the pleadings in favor of Appellees, 

which was previously affirmed on appeal, without remand, by this Court, 

and which remains the law of the case. Further, as this Court did not remand 
Scioto App. No. 13CA3565 13

the case to the trial court after our affirmance on appeal, and the reasons 

advanced in support of the motion to vacate did not raise the issue of 

standing or otherwise invoke the jurisdiction of the trial court, the trial court 

was divested of jurisdiction to consider Appellants’ motion to vacate. 

 JUDGMENT AFFIRMED. 
Scioto App. No. 13CA3565 14

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that costs be 

assessed to Appellants. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Scioto County Common Pleas Court to carry this judgment into 

execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

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

Rule 27 of the Rules of Appellate Procedure. 

Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion. 

 For the Court, 

 BY: ___________________________________ 

 Matthew W. McFarland, Judge 

 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.