[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-Ohio-
1988, ¶ 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-Ohio-
3084, ¶ 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.