[Cite as W2 Properties, L.L.C. v. Haboush, 2013-Ohio-2556.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
W2 PROPERTIES LLC, : APPEAL NO. C-120366
TRIAL NO. 09CV-02818
Plaintiff, :
vs. : O P I N I O N.
FRED HABOUSH, :
and :
NAJAT EL-KEK, a.k.a. :
NAJAT HABOUSH,
:
Defendants/Third-Party
Plaintiffs-Appellants, :
vs. :
SPRING VALLEY BANK, :
and :
GERALD J. ROBINSON, :
Third-Party Defendants- :
Appellees,
:
and
:
SCOTT W. BRAUER, et al.,
Third-Party Defendants. :
Civil Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 21, 2013
OHIO FIRST DISTRICT COURT OF APPEALS
Bart B. Sharkey, for Defendants/Third-Party Plaintiffs-Appellants,
Lindhorst & Dreidame, Co., L.P.A., Christopher H. Hurlburt and Gerald J.
Robinson, for Third-Party Defendants-Appellees.
Please note: this case has been removed from the accelerated calendar.
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OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Fred and Najat Haboush appeal from the judgment of the Hamilton
County Municipal Court that dismissed their third-party claims for fraudulent
inducement against Spring Valley Bank and Gerald J. Robinson. The trial court
initially had entered default judgment on those claims, and later had denied relief
from that judgment. We affirmed its denial with respect to all issues but damages,
holding that a hearing was required to determine the appropriate amount. W2
Properties LLC v. Haboush, 196 Ohio App.3d 194, 2011-Ohio-4231, 962 N.E.2d 858
(1st Dist.) (Haboush I). On remand the trial court held a hearing on damages, but at
its conclusion, it dismissed the claims against Spring Valley Bank and Robinson. For
the following reasons, we hold that this was contrary to the law of the case, and we,
therefore, reverse the trial court’s judgment.
{¶2} Although we thoroughly discussed the background of this case in
Haboush I, we repeat the pertinent facts here to better explain our reasoning. W2
Properties LLC (“W2”) brought this action in forcible entry and detainer against the
Haboushes, alleging that they had breached a lease/option-to-buy agreement
concerning rental property that the Haboushes had once owned. In their answer, the
Haboushes disputed W2’s ownership of the property and the validity of the lease
agreement. The Haboushes also filed a counterclaim against W2 and a third-party
complaint against Spring Valley Bank, Robinson, and others, alleging that they had
fraudulently induced them to sell the property to W2 and enter into the lease
agreement.
{¶3} The trial court entered default judgment against Spring Valley Bank
and Robinson after they failed to answer or otherwise appear in the action, and
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OHIO FIRST DISTRICT COURT OF APPEALS
without holding a hearing, “awarded damages to each plaintiff against each defendant
in the amount of $15,000, calculated the total award as $30,000, and then ordered the
sum to be paid jointly and/or severally by the defendants.” Haboush I at ¶ 32.
{¶4} Spring Valley Bank and Robinson timely sought relief from that
judgment, but their motion was denied. On appeal to this court, we held that the
judgment was not void for defective service of process, and that the trial court had
not erred in denying relief from judgment under Civ.R. 60(B)(1)-(4). Id. at ¶ 19 and 25.
We concluded, however, that the trial court had abused its discretion in denying relief
from judgment under Civ.R. 60(B)(5) with respect to its award of damages, in part
because the trial court had not held a hearing on the issue. Id. at ¶ 33; see, e.g., L.S.
Indus. v. Coe, 9th Dist. No. 22603, 2005-Ohio-6736 (holding that “where the
determination of damages [for a default judgment] necessarily requires consideration
of information outside a written instrument, the trial court abuses its discretion in
failing to hold an evidentiary hearing to determine the exact amount of damages”). We,
therefore, remanded the cause to the trial court for a hearing on damages, but affirmed
its judgment in all other respects. Id. at ¶ 34.
{¶5} On remand, the trial court held an evidentiary hearing on damages
where it considered the testimony of Najat Haboush, her and Fred’s son Chad
Haboush, and appraiser Paul Wesselkamper. At its conclusion, the court announced:
Based on the credibility of the witnesses that I’ve heard, I
find that this was an arm’s-length transaction here
between all the parties. And that I agree with what [one of
the witnesses] said, that if the seller could have got more
than $47,000, they would have gotten more than
$47,000. This was an agreed upon price with both sides
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OHIO FIRST DISTRICT COURT OF APPEALS
receiving a benefit. The Haboushes got out from under
the mortgage, and the property was transferred. It’s clear
from all the paperwork here that this was a sale; the
Haboushes in the settlement agreement, and the
Settlement Statement, are referred to as “the seller.” The
name on it – and it’s clear black and white. I don’t find
that, therefore, that there were no damages here to the
Haboushes; that they sold it at the price that they wanted
to sell it at. So I rule in favor of Mr. Robinson and Spring
Valley Bank.
T.p. 122-123.
{¶6} The trial court’s finding of no liability was borne out in its “amended
judgment entry,” which dismissed the claims against Spring Valley Bank and Robinson
with prejudice. The Haboushes now appeal from that judgment, raising two
assignments of error.
{¶7} In their first assignment of error, the Haboushes argue that the trial
court erred in revisiting the issue of liability. It is axiomatic that “[a]bsent
extraordinary circumstances * * * an inferior court has no discretion to disregard a
mandate of a superior court in a prior appeal in the same case.” Nolan v. Nolan, 11
Ohio St.3d 1, 462 N.E.2d 410 (1984), syllabus. “The doctrine is necessary to ensure
consistency of results in a case, to avoid endless litigation by settling the issues, and
to preserve the structure of superior and inferior courts as designed by the Ohio
Constitution.” Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d
329, ¶ 15. “Thus, where at a rehearing following remand a trial court is confronted
with substantially the same facts and issues as were involved in the prior appeal, the
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OHIO FIRST DISTRICT COURT OF APPEALS
court is bound to adhere to the appellate court’s determination of the applicable law.
Moreover, the trial court is without authority to extend or vary the mandate given.”
(Internal citations omitted.) Nolan at 3-4.
{¶8} In Haboush I, we affirmed the trial court’s denial of relief from the
default judgment against Spring Valley Bank and Robinson as to all issues but
damages. Thus, when we remanded the cause to the trial court for the purpose of
determining damages, the issue of Spring Valley Bank’s and Robinson’s liability was
settled. See GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146,
149-150, 351 N.E.2d 113 (1976) (“Regardless of whatever else may be said of a default
judgment, it is a judgment. It is as good as any other judgment. It is a final
determination of the rights of the parties.”). Consequently, when the trial court
premised its finding of no damages on a lack of liability and dismissed the Haboushes’s
claims, the court acted without authority and contrary to the law of the case. We,
therefore, sustain the first assignment of error.
{¶9} In their second assignment of error, the Haboushes alternatively argue
that the trial court erred in denying their motion for a new trial under Civ.R. 59 for the
error raised in their first assignment. Given our disposition of that assignment, we
overrule this assignment. The judgment of the trial court is reversed, and this cause is
remanded for a determination of damages on the Haboushes’ claims against Spring
Valley Bank and Robinson.
Judgment reversed and cause remanded.
H ENDON , P.J., and H ILDEBRANDT , J., concur.
Please note:
The court has recorded its own entry this date.
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