Stemen v. Shibley

• Decision Date: 22 October 1982
• Citation: 11 OBR 441,465 N.E.2d 460,11 Ohio App.3d 263
• Parties: , 11 O.B.R. 441 STEMEN, Appellant, v. SHIBLEY et al., Appellees. *
• Court: Ohio Court of Appeals

Page 263

11 Ohio App.3d 263

465 N.E.2d 460, 11 O.B.R. 441

STEMEN, Appellant, v. SHIBLEY et al., Appellees. ^*

Court of Appeals of Ohio, Sixth District, Lucas County.

Oct. 22, 1982.

Syllabus by the Court

1. The doctrine of the law of the case is a viable rule of practice in Ohio. The purpose of the rule is to assure that upon remand, the mandate of an appellate court is followed by the trial court.

2. Upon reconsideration of a case, after appellate review, the law of the case doctrine does not apply upon subsequent appellate review where the facts and issues presented on subsequent review are substantially different from those which were previously before the appellate court.

3. The doctrine of the law of the case does not foreclose a party from filing, nor the court from considering, a new motion for summary judgment, notwithstanding that the trial court, in the same case, had previously granted summary judgment, which judgment was subsequently reversed on appeal, where such new motion is based upon an expanded record.

4. On a motion for summary judgment, the non-moving party has a duty to respond and may not rest upon the mere allegations or denials in his pleadings; summary judgment may only be granted, if appropriate; if non-moving party fails to respond, the affidavits of the moving party are accepted as true.

R. Martin Galvin, Toledo, for appellant.

Cecelia Martaus, Toledo, for appellees.

DOUGLAS, Judge.

This case is before the court on appeal from summary judgment entered for the appellees, Joseph D. Shibley and Pete Morris, by the Lucas County Court of Common Pleas on May 5, 1982, which was amended on May 20, 1982. From that judgment, appellant filed his timely notice of appeal.

The history of this litigation is long and involved, this being the second time that this case is before this court. On December 12, 1979, the appellant, Victor J. Stemen, filed his complaint, naming Joseph D. Shibley, Pete Morris, George N. Kiroff, ¹ John S. Morris, and Fatima Morris as defendants in said action.

The appellant, in his complaint, alleged the improper appointment of a receiver by Judge George Kiroff and that said receivership illegally operated a business utilizing a liquor permit which had been issued to the appellant and defendant, Fatima Morris. Further, the complaint alleged that said receivership failed to file and/or pay sales taxes while operating the business. Finally, the complaint averred that the appointment of the receiver, the operation of said business, and the conversion of the appellant's assets were all part of a civil conspiracy which damaged the appellant.

On February 11, 1980, defendant George N. Kiroff filed a motion to dismiss the cause of action against him. The appellees Joseph D. Shibley and Pete Morris, filed motions for summary judgment, together with certain exhibits and affidavits, on February 22, 1980. Appellant Stemen at no time submitted evidence contrary to appellees' motions for summary judgment.

The trial court, on July 9, 1980, entered the following judgment:

"Upon due consideration, the Court finds the motion by counsel for defendant, George N. Kiroff, to dismiss well taken; it is therefore granted. Moreover, the evidence shows that there exists no genuine issue of material fact, and that the defendants Joseph Shibley and Pete Morris are entitled to judgment as a matter of law. Construing the evidence most strongly in favor of the plaintiff, reasonable minds can come to but one conclusion, that being adverse to the plaintiff. The motions for summary judgment filed by defendants Shibley and Pete Morris are therefore granted. * * * "

Said entry was amended, nunc pro tunc, on July 22, 1980, to include the language "as to this journal entry, there is no just cause for delay." From that judgment, appellant sought review by this court, stating eight assignments of error. See Stemen v. Shibley (June 19, 1981), Lucas App. No. L-80-244, unreported. In our disposition of that case, this court found Assignment of Error No. 6 to be well-taken. This assignment of error was stated as follows:

"6. The trial court committed prejudicial and reversible error by granting the motions for summary judgment in favor of the defendants-appellees, because there is a genuine issue of material facts [sic ] that there was in fact a conspiracy between all of the defendants-appellees to gain the benefits and title of the plaintiff-appellant's assets through the unlawful method of operating a receivership in the plaintiff-appellant's name, and incurring tax liabilities in the plaintiff-appellant's name, and by obtaining licenses in the plaintiff-appellant's name, for personal gain of the defendants-appellees." See Stemen v. Shibley, supra.

In so holding, we determined that upon the evidence which was before the trial court, the question of "whether the receiver's actions conformed with the court's order to operate a business or whether the receiver unlawfully reorganized the business" was a "question of fact for the trial court to review." This court also determined that a question existed as to the propriety of appellee's (Pete Morris') claiming a benefit of a release to which he was not a party. Further, we agreed that the trial court did not err in dismissing George N. Kiroff as a party to the lawsuit, as "judicial immunity creates a defense to any liability for damages allegedly caused due to acts committed in a judicial capacity." Stemen v. Shibley, supra. Accordingly, we remanded the case to the Lucas County Court of Common Pleas for further proceedings consistent with our decision.

On September 23, 1981, appellees Shibley and Pete Morris again filed a motion for summary judgment, together with additional exhibits and affidavits. Appellant again failed to submit evidence contrary to appellees' summary judgment motion; however, on March 18, 1982, appellant did file a memorandum in opposition to appellees' second motion for summary judgment. On May 5, 1982, the trial court filed an opinion and judgment entry in which summary judgment was again entered for the appellees. The judgment entry was amended, nunc pro tunc, on May 20, 1982, to include the language, "[t]he court expressly determines that there is no just reason for delay." The appeal herein is taken from that judgment.

Appellant, in his brief, sets forth four assignments of error, the first of which, if determined to be meritorious, would be dispositive of this appeal. Thus, our attention is initially focused on appellant's first assignment of error:

"1. The trial court committed prejudicial and reversible error in entertaining and granting the second motion for summary judgment in contradiction of the determination of this court in C.A. L-80-244, in which case this court determined that there is a genuine issue of material facts [sic ] which should be tried in the lower court."

At the outset, we note that appellant, in his first assignment of error, has misstated the holding of this court in the previous appeal. In our examination of our previous decision, we do not make any determination that certain issues "should be tried in the lower court." Although we did determine that genuine issues of material fact existed, our remand to the trial court was for "further proceedings consistent with this decision." Therefore, by not setting the case for trial, the lower court did not expressly disregard the mandate of this court. Thus, upon our remand to the trial court, the issue becomes whether the entertaining and granting of appellees' motion for summary judgment is not, per se, a further proceeding consistent with our decision.

Appellant argues that, in the first appeal, when this court determined that genuine issues of material fact existed, and remanded accordingly, our decision was tantamount to a mandate which stated that these issues must be tried. We disagree.

In support of his argument, appellant asserts that the action of the trial court violated the doctrine of "the law of the case." Appellant provides us with the following statement of the doctrine of the law of the case:

" * * * after a definite determination a reviewing court has reversed and remanded a cause for further action in the trial court and the unsuccessful party does not prosecute review therefrom to the Supreme Court, the pronouncement of the law by the intermediate court becomes the law of the case, and must be followed by the lower court in subsequent proceedings in the case. A trial judge is without authority to resolve the law at variance with the mandate of the Court of Appeals upon a former appeal of the case." 5 Ohio Jurisprudence 3d (1978) 428-429, Appellate Review, Section 718.

Initially, we note that the doctrine of the "law of the case" has been recognized in Ohio as a rule of practice rather than a rule of substantive law. See Gohman v. St. Bernard (1924), 111 Ohio St. 726, 146 N.E. 291, overruled on other grounds, see discussion, infra; Stowell v. Ohio Fuel Gas Co. (App.1933), 13 Ohio Law Abst. 620, 625. We further note that there have been very few decisions which address this doctrine since the middle of the Twentieth Century. See 5 Ohio Jurisprudence 3d (1978) 308, Appellate Review, Section 648. The rule was created because of the necessity of a trial court to obey the mandate of an appellate court upon a retrial of a case. Gohman v. St. Bernard, supra, at 731, 146 N.E. 291. Perhaps the most recent Supreme Court recognition and approval of the rule is found in State ex rel. Potain v. Mathews (1979), 59 Ohio St.2d 29, 391 N.E.2d 343 , where the court stated at page 32, 391 N.E.2d 343:

"The doctrine of law of the case is necessary, not only for consistency of result and the termination of litigation, but also to preserve the structure of the judiciary as set forth in the Constitution of Ohio. Article IV of the Ohio Constitution designates a system of 'superior' and 'inferior' courts, each possessing a distinct function. The...