Hawley v. Ritley

• Decision Date: 17 February 1988
• Docket Number: No. 86-1992,86-1992
• Citation: 519 N.E.2d 390,35 Ohio St.3d 157
• Parties: HAWLEY, Appellee, v. RITLEY, Appellant, et al.
• Court: Ohio Supreme Court

Page 157

35 Ohio St.3d 157

519 N.E.2d 390

HAWLEY, Appellee, v. RITLEY, Appellant, et al.

No. 86-1992.

Supreme Court of Ohio.

Feb. 17, 1988.

This action arose out of a written purchase agreement for the sale of commercial property in Rocky River, Ohio between plaintiff-appellee, Florence Hawley as seller, and defendant-appellant, Charles R. Ritley as purchaser. At the time the agreement was entered into, the property was encumbered by an executed ninety-nine year lease. The executed lease contained a clause which indicated that the lessee of the property had a right of first refusal to purchase the property. The lease itself was not recorded; however, a memorandum of that lease was allegedly recorded pursuant to R.C. 5301.251. Apparently, neither the memorandum of lease nor an unexecuted copy of a lease document furnished by appellee to appellant contained the right of first refusal clause.

After the sale, it was discovered that the lessee to the property had the right of first refusal to purchase the property, and the lessee threatened to file a lawsuit to enforce this right. Consequently, appellee brought this action in the court of common pleas to rescind the sale of property based upon mutual mistake. Appellant answered and counterclaimed alleging, inter alia, that appellee was in breach of contract and that she had misrepresented that the unexecuted lease document was, in effect, a true copy of the executed lease.

At the first trial, the court found no mutual mistake but ordered a rescission of the purchase agreement. The trial court found that appellant was not a "bona fide purchaser" of the property, and that he purchased the property with constructive notice of the right of first refusal held by the lessee. The trial court then "merged" all counterclaims and cross-claims raised by Ritley into its final order in favor of appellee.

Upon appeal, Ritley raised seven assignments of error, including the sixth assignment of error which alleged:

"The trial court committed reversible error in merging defendant Ritley's counterclaims and cross-claims for money damages into its order, especially in view of its previous determination to bifurcate and hear those claims later, and in view of the fact that it heard no evidence on those claims."

The court of appeals reversed and remanded the cause with instructions to the trial court to enter judgment in favor of Ritley. However, with respect to the sixth assignment of error, the appellate court stated as follows:

"Defendant assigns as error that the trial court merged his counterclaims and cross-claims into its order but defendant does not brief this sixth assignment of error. That which is not brief [sic ] need not be addressed. App.R. 12(A).

"Defendant's sixth assignment of error is not well taken for lack of briefing support."

Appellant filed a motion for reconsideration of the court's determination of the sixth assignment of error. Nevertheless, the appellate court refused to reconsider its disposition of the sixth assignment of error. Neither party appealed the matter further and the cause was remanded to the trial court.

On remand and entry of judgment in his favor, Ritley moved for leave to file supplemental counterclaims alleging that new events and causes of action had arisen subsequent to the original proceedings. Appellant alleged that additional claims of breach of warranty, breach of contract, abuse of process and malicious prosecution were not available to him until after judgment had been entered in his favor. Over the objections of appellee, the trial court granted appellant's motion and heard the supplemental counterclaims at the second trial. At the conclusion of the second trial, the court granted appellee's motion for a directed verdict on the claims alleging abuse of process and malicious prosecution. However, the cause was submitted to a jury on appellant's claims for breach of contract and breach of warranty, whereupon the jury returned a verdict in favor of appellant in the amount of $25,000 solely on the claim for breach of contract.

Upon the second appeal before the court of appeals, the appellee raised the issue of whether the trial court acted properly on remand in permitting appellant to pursue his supplemental counterclaims. After due consideration, the appellate court reversed the trial court's judgment on the jury verdict and held that the trial court exceeded the scope of its remand by entertaining the supplemental counterclaims. The court of appeals stated that it had considered all of the issues raised by the parties in the first appeal, and found that its disposition of those issues constituted the "law of the case." Therefore, the appellate court held that it was error for the trial court to consider the counterclaims that had been, in its opinion, disposed of in the first trial and upon appellate review.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Alan L. Melamed Co., L.P.A., and Alan L. Melamed, Cleveland, for appellee.

Schwarzwald, Robiner, Wolf & Rock Co., L.P.A., Donald M. Robiner and Paul F. Levin, Cleveland, for appellant.

PER CURIAM.

The determinative issue presented in this appeal is whether the trial court, on remand, acted beyond the scope of the decision and mandate rendered by the first reviewing court of appeals. While we view the cause sub judice as presenting a close question, we believe that the court of appeals below correctly applied the "law of the case" doctrine in reversing the jury verdict and judgment awarded by the trial court on remand. Accordingly, for the reasons that follow, we affirm the judgment of the court of appeals.

Appellant Ritley raises many arguments urging a reversal of the court of appeals' decision: that the first reviewing appellate court did not comply with App.R. 12(A) and the first trial court's judgment was reversed in toto; that the ruling on the sixth assignment of error was not a ruling on the merits that the matter set forth in the sixth assignment of error was in fact briefed (albeit in the reply brief) and argued; that some of the counterclaims determined on remand were new, supplemental or did not ripen until after the first appeal; and that the court of appeals' actions amount to an abuse of discretion.

In the first appeal, the appellate court relied on App.R. 12(A) ¹ in overruling appellant's sixth assignment of error which related to counterclaims that the first trial court apparently denied when it "merged" such counterclaims into final judgment adverse to appellant's interests. In our view, the court of appeals acted well within its discretion in overruling or disregarding the sixth assignment of error because given the lack of briefing on this assigned error, the plain language of the rule in question permits such a disposition. As this court stated on a prior occasion, "[e]rrors not treated in the brief will be regarded as having been abandoned by the party who gave them birth." Uncapher v. Baltimore & Ohio Rd. Co. (1933), 127 Ohio St. 351, 356, 188 N.E. 553, 555.

Similarly, we are not persuaded by appellant's arguments that the first appellate panel reversed the trial court's judgment in toto, or that the disposition rendered on the sixth assignment of error was not a decision on the merits. We believe that if the first reviewing court of appeals intended its decision to be a reversal in toto of the trial court's judgment, then the appellate court should have found the sixth assignment of error to be moot based on its reversal of the first trial court's rescission order. However, the court of appeals did not find the sixth assignment of error to be moot, even though it found appellant's seventh assignment of error to be moot based on its decision concerning the other assignments of error. In any event, consistent with the discretion vested in the court of appeals pursuant to App.R. 12(A), we find that the first court of appeals' finding of the sixth assignment of error to be "not well taken for lack of briefing support" was indeed a decision determined on the merits inasmuch as it was a final adjudication of the counterclaims issue.

It is further alleged by appellant that contrary to the appellate court's opinion, the sixth assignment of error was in fact briefed in the reply brief and argued before the court of appeals on oral argument. While we do not doubt counsel for appellant's word as a professional (as was given on oral argument) that such was the case, we find nothing in the record that compels a finding of an abuse of discretion on the part of the court of appeals at this late stage in the proceedings.

Since the term "abuse of discretion" connotes that the court's attitude was either unreasonable, arbitrary or unconscionable, we are constrained from characterizing the trial court's behavior as such. See, e.g., Blakemore...